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Probate
 
 
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Probate is the legal process of administering the estate
Estate (law)

An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time....
 of a deceased person by resolving all claims and distributing the deceased person's property
Property

Property is any physical or virtual entity that is ownership by an individual or jointly by a group of individuals. An owner of property has the right to consumption, sell, Renting, mortgage, transfer and exchange his or her property....
 under the valid will. A surrogate court
Surrogate Court

A surrogate court, sometimes referred to as probate court, is a specialized court which deals with matters of probate and the administration of estates....
 decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor
Executor

An executor, in the broadest sense, is one who carries something out .Executor is also a legal term referring to a person named by a maker of a will , or nominated by the testator, to carry out the directions of the will....
 as the personal representative
Personal representative

In common law jurisdictions, a personal representative is the generic term for an executor for the estate of a deceased person who left a will or the administrator of an estate of an intestate estate....
 of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

See also Probative
Probative

Probative is a term used in law to signify "tending to prove." Probative evidence "seeks the truth". Generally in law, evidence that is not probative , or doesn't prove anything, is inadmissible and may be stricken from the record "if objected to by opposing counsel." A balancing test may come in to the picture if the value of the evidence n...
.
The etymology
Etymology

Etymology is the study of the roots and history of words; and how their form and meaning have changed over time.In languages with a long detailed history, etymology makes use of philology, the study of how words change from culture to culture over time....
 of "probate" stems from Latin, old French, and old English words with somewhat different meanings.






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Probate is the legal process of administering the estate
Estate (law)

An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time....
 of a deceased person by resolving all claims and distributing the deceased person's property
Property

Property is any physical or virtual entity that is ownership by an individual or jointly by a group of individuals. An owner of property has the right to consumption, sell, Renting, mortgage, transfer and exchange his or her property....
 under the valid will. A surrogate court
Surrogate Court

A surrogate court, sometimes referred to as probate court, is a specialized court which deals with matters of probate and the administration of estates....
 decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor
Executor

An executor, in the broadest sense, is one who carries something out .Executor is also a legal term referring to a person named by a maker of a will , or nominated by the testator, to carry out the directions of the will....
 as the personal representative
Personal representative

In common law jurisdictions, a personal representative is the generic term for an executor for the estate of a deceased person who left a will or the administrator of an estate of an intestate estate....
 of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

Etymology

See also Probative
Probative

Probative is a term used in law to signify "tending to prove." Probative evidence "seeks the truth". Generally in law, evidence that is not probative , or doesn't prove anything, is inadmissible and may be stricken from the record "if objected to by opposing counsel." A balancing test may come in to the picture if the value of the evidence n...
.
The etymology
Etymology

Etymology is the study of the roots and history of words; and how their form and meaning have changed over time.In languages with a long detailed history, etymology makes use of philology, the study of how words change from culture to culture over time....
 of "probate" stems from Latin, old French, and old English words with somewhat different meanings. The earliest definition, dated to 1463, means the "official proving of a will," and originates from the Classical Latin
Classical Latin

Classical Latin is the form of the Latin used by the ancient Rome in what is usually regarded as "classical" Latin literature. Its use spanned the Golden Age of Latin literature—broadly the 1st century BC and the early 1st century AD—possibly extending to the Silver Age—broadly the 1st and 2nd centuries....
 word probatus, meaning "a thing proved". This is the past participle of probare, which means "to try, test, prove" or "prove to be worthy". It also traces its roots to the old french word prouwe, dated circa 1175, or prover, and is related to the English word "prove". The term "probative," used in the law of evidence
Evidence

Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either a) presumed to be true, or b) were themselves proven via evidence, to demonstrate an assertion's truth....
, comes from the same Latin root but has a different English usage.

Commonwealth


In England and Wales
England and Wales

England and Wales is a legal unit within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom....
, Northern Ireland
Northern Ireland

conventional_long_name = Northern Ireland|native_name= Tuaisceart ?ireannNorlin Airlann|motto =|image_map = Europe location N-IRL2.png...
, Commonwealth
Commonwealth

The England noun commonwealth dates from the fifteenth century. The original phrase "common-wealth" or "the common weal" comes from the old meaning of "wealth," which is "well-being." The term literally meant "common well-being." Thus commonwealth originally meant a state or nation-state governed for the common good as opposed to an autho...
 countries (common law
Common law

Common law refers to law and the corresponding Legal systems of the world developed through legal opinion of courts and similar tribunals , rather than through statute law or Executive ....
 jurisdictions), Ireland
Ireland

Ireland is the List of islands by area in Europe, and the twentieth-largest island in the world. It lies to the north-west of continental Europe and is surrounded by hundreds of islands and islet....
 and some states in the U.S., probate ("official proving of a will") is obtained by executors of a will while Letters of Administration
Letters of Administration

Letters of Administration are granted by a Surrogate Court or probate registry to appoint appropriate people to deal with a deceased person's Estate where property will pass under Intestacy Rules or where there are no executors living having been validly appointed under the deceased's will ....
 are granted where there are no executors.

U.S.


In the jurisdictions in the U.S. that recognize a married couple's property as community property
Community property

Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions....
 or as tenancy by the entireties, if a person dies intestate, his estate passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse, it is necessary to "probate the estate", whether or not the decedent had a valid will
Will (law)

In common law, a will or testament is a document by which a person regulates the rights of others over his or her property or family after death....
. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administrate the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument.

The will usually names an executor
Executor

An executor, in the broadest sense, is one who carries something out .Executor is also a legal term referring to a person named by a maker of a will , or nominated by the testator, to carry out the directions of the will....
 (personal representative), a person tasked with carrying out the instructions laid out in the will. The executor marshalls the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person will be named as administrator. An executor or an administrator may receive compensation for his service.

The probate court may require that the executor provide a fidelity bond
Fidelity bond

A fidelity bond is a form of protection that covers policyholders for losses that they incur as a result of fraudulent acts by specified individuals....
, an insurance policy in favor of the estate to protect against possible abuse by the executor.

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a.
CTA

CTA may refer to:*California Teachers Association*Call to Action*Cairo Transportation Authority*Cased telescoped ammunition*IATA code for Catania-Fontanarossa Airport...
 (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative
Personal representative

In common law jurisdictions, a personal representative is the generic term for an executor for the estate of a deceased person who left a will or the administrator of an estate of an intestate estate....
.

Steps of probate


Some of the decedent's property may never enter probate because it passes to another person contract
Contract

A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law. It is a binding legal agreement....
ually, such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship".

Property held in a living trust
Living trust

A living trust, or in Latin language inter vivos trust , is a trust created during a person's lifetime to either save money on taxes or setup long term property management....
 also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate.

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy
Intestacy

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate , the remaining estate fo...
 laws of the state.

A party may challenge the probate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit
Lawsuit

In law, a lawsuit is a civil action brought before a court in which the party commencing the action, called the plaintiff, seeks a legal remedy or equitable remedy....
 to prove the claim. Such challenge may force the court to scrutinize the probate in further detail.

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Avoiding probate


Probate generally lasts several months, occasionally over a year before all the property is distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust
Living trust

A living trust, or in Latin language inter vivos trust , is a trust created during a person's lifetime to either save money on taxes or setup long term property management....
. A settlor, or a creator of a trust, transfers ownership of his real property from himself to a trust which he controls and can revise (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of the property of the trust. Since a probate is a public process, a living trust shields private affairs of the deceased and the heirs from public scrutiny and helps the estate avoid estate tax
Inheritance tax

Inheritance tax, estate tax and death duty are the names given to various taxes which arise on the death of an individual. It is a tax on the estate, or total value of the money and property, of a person who has died....
.

Probate can also be avoided by setting up P.O.D (paid on death) designations on bank accounts and T.O.D (transfer on death) on brokerage accounts, 401ks and IRAs that pass automatically to designated beneficiaries.

As for real estate, a testator must add a named beneficiary to a deed by executing a life estate deed. The property can be passed several generations.

The key to avoiding probate is having named beneficiaries on all assets, as is the case for life insurance. A common error on life insurance is naming the insureds estate as the contingent beneficiary. Doing so will place the proceeds from that policy into probate.

Life insurance
Life insurance

Life insurance or life assurance is a contract between the policy owner and the insurance, where the insurer agrees to pay a sum of money upon the occurrence of the insured individual's or individuals' death or other event, such as terminal illness or critical illness....
, savings account
Savings account

Savings accounts are accounts maintained by retail financial institutions that pay interest but can not be used directly as money . These accounts let customers set aside a portion of their liquid assets while earning a monetary return....
s, and joint tenancies with the right of survivorship are testamentary substitutes to avoid probate.

Avoiding probate does not eliminate estate taxes. Under the federal estate tax law as modified, included in the definition of a taxable estate are property held in a living trust, life insurance, payable on death or transfer on death financial instruments, and other property a party receives upon decease of the decedent.

Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate. Generally, to avoid an estate tax, a person must give it away irrevocably or leave it to a qualified charity. However, the use of credit shelter trusts (AB trusts) can allow a married couple to preserve both unified credits, allowing up to twice the total estate to pass to heirs without estate tax. It may reduce or eliminate the tax.

England and Wales

When someone dies, issuing the legal document to the executor or other administrator to give them authority to deal with their estate is known as probate. The grant of representation is issued by the Probate Registry. If there is a will but no executor, letters of administration
Letters of Administration

Letters of Administration are granted by a Surrogate Court or probate registry to appoint appropriate people to deal with a deceased person's Estate where property will pass under Intestacy Rules or where there are no executors living having been validly appointed under the deceased's will ....
 are issued instead.

It is not always necessary to obtain a grant of probate; some organisations, including many insurance companies, banks and building societies, will release funds to the executor of the will without seeing a grant of probate if the amount is small and the situation is not complex.

For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death
Administration of an estate on death

In English law, Administration of an estate on death arises if the deceased is legally intestate. In United States law, the term Estate Administration is used....
.

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